What is Law?

Law, the State and the Constitution

Classification of Law

Sources of Law

The Judicial System in Malaysia

Law is understood as being a general rule of conduct.

The Oxford English dictionary defined law as the body of enacted or customary rules recognized by a community as binding.

Law may be defined as a body of rules which are enforced by the state.

Law in Malaysia

Malaysia consists of Peninsular Malaysia, Sabah and Sarawak.

Two important links, which unite the two parts of Malaysia: the Parliament and the Federal Court.

Malaysian Parliament

Can and does legislate for the whole country

Federal Court

Acts as a final court of appeal for the whole country

What is the State?

Legal systems are administrated almost entirely on the basis of the political unit known as the State.

In Malaysia, there are 13 states altogether.

For international purpose Malaysia is one state.

Every state has a government and has rules which lay down who shall govern and how to govern.

There are three broad divisions of law:

Public Law

Individuals and the State

International Law

Law that prevails between states

Private Law

Individuals inter se (between themselves)

Public law is basically the law which governs the relationship between individuals and state.

Public law is divided into:

CLA

SSIF

ICA

TIO

N O

F LA

W

Constitutional Law

Rights of individuals in the State

Criminal Law

Offences against the State; obligations imposed on individuals)

Defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and consequently do observe in their relations with each other.

International law is divided into 2 categories:

CLA

SSIF

ICA

TIO

N O

F LA

W

Public International Law

Prevails between States

Private International Law

Conflict of laws/a part of municipal lawconsists of the rules that guide a judge when the laws of more than one country affect a case.

Concerned with matters that affect the rights and duties of individuals amongst themselves.

Intended to:

Give compensation to persons injured.

To enable property to be recovered from wrongdoers.

To enforce obligations (contracts and trusts).

CLA

SSIF

ICA

TIO

N O

F LA

W

Types of Private Law:

CLA

SSIF

ICA

TIO

N O

F LA

W

Contracts

Based on agreement.

A branch of private law which determines when a promise or a set of promises is legally enforceable.

Types of Private Law:

CLA

SSIF

ICA

TIO

N O

F LA

W

Tort

Based on obligation imposed by law.

A tort is a civil wrong.

A breach of a general duty, which is imposed by the law (and not agreed between the parties).

It is remediable by a civil action for unliquidated damages.

The essential elements of a tort are that there must be an act or omission done intentionally or negligently, and there must be damage caused by such act or omission which is not remote.

Types of Private Law:

CLA

SSIF

ICA

TIO

N O

F LA

W

Trust

An equitable obligation binding a person (who is called a trustee) to deal with property over which he has control (which is called trust property) for the benefit of persons (who are called beneficiaries or cestui que trust) of whom he may himself be one and any one of the beneficiaries may enforce the obligation.

Sources of Law means the legal sources, i.e. the legal rules that make up the law in Malaysia.

Malaysian law can be classified into written and unwritten law.

Written law is the most important source of law. It refers to that portion of Malaysian law.

Unwritten law is simply that portion of Malaysian law which is not being enacted by Parliament or the State Assemblies.

Written Law

The Federal Constitution

State Constitution

Legislation

Subsidiary Legislation

Unwritten Law

English Law

Judicial Decisions

Customs

The Federal Constitution

The supreme law of the land.

Lays the powers of the Federal and State governments.

Stated in federal, state and concurrent list.

Enshrines the basic or fundamental rights of the individual.

Can only be changed by a two-thirds majority of the total numbers of members of the legislature (not by a simple majority).

SOU

RC

ES O

F LA

W

State Constitutions

Each State has its own constitution regulating State Government.

Applicable to that particular State only.

Nine former Malay State is headed by Sultan, except in Negeri Sembilan (Yang di-Pertuan Besar) & Perlis (Raja).

Four ex-British colonies of Penang, Malacca, Sabah & Sarawak are headed by Yang di-Pertuan Negeri.

Contain provisions which enumerated in Eight Schedule to Federal Constitution.

Relating to the State matters, i.e. about the Ruler, Executive Council, the Legislature & Legislative Assembly, financial provisions, State employees, etc.

SOU

RC

ES O

F LA

W

Legislation

The law enacted by the legislators; i.e. the Parliament at Federal level and the various State Legislative Assemblies at State level.

Concern with the basic and main laws.

Parliament is competent to enact laws on matters enumerated in List I and the State on List II of the Ninth Schedule.

Matters on List III are within the concurrent competence of both authorities and matters not enumerated are within the authority of the State.

Enacted after 1946 until 1956 is known as Ordinance; enacted after or from 1957: Act; enacted by State Legislative Assemblies: Enactment; except in Sarawak: Ordinance.

SOU

RC

ES O

F LA

W

Subsidiary Legislation

Acts or enactments that confer powers to specific bodies or persons in authority to make law.

Such persons or bodies include the Yang di-Pertuan Agong, Ministers and local authorities, among others.

Any proclamation, rule, regulation, order, notification, by-law or other instruments made under any Ordinance, Enactment or other lawful authority and having legislative effect.

Supplement legislation by Parliament and Statesmen legislatures.

Concern with everyday matters, normally relate to policies.

Deals with the details about which legislature has neither the time nor the technical knowledge to enact laws.

SOU

RC

ES O

F LA

W

English Law

Acts or enactments that confer powers to specific bodies or persons in authority to make law.

Such persons or bodies include the Yang di-Pertuan Agong, Ministers and local authorities, among others.

Any proclamation, rule, regulation, order, notification, by-law or other instruments made under any Ordinance, Enactment or other lawful authority and having legislative effect.

Supplement legislation by Parliament and Statesmen legislatures.

Concern with everyday matters, normally relate to policies.

Deals with the details about which legislature has neither the time nor the technical knowledge to enact laws.

SOU

RC

ES O

F LA

W

Judicial Decisions

Can be found in the judicial decisions of:

The Superior Court, i.e. the High Court and Supreme Court.

The former Federal Court and the advice of the Judicial Committee of the Privy Council.

Applying the doctrine of binding judicial precedents.

A judges decision in an earlier and similar case constitutes a precedent and authoritative that binds on later courts.

E.g.

Previous decision of the Court of Appeal made in a similar situation binds the High Court making a decision today.

A High Court decision is binding on all subordinate courts but not the Supreme Court.

SOU

RC

ES O

F LA

W

Customs

Customs of the local inhabitants in Malaysia, i.e. customs relating to family law i.e. marriage, divorce and inheritance.

Adat applies to Malays; prior to the enforcement of the Law Reform (Marriage and Divorce) Act 1976.

Adat Perpatih---Negeri Sembilan & Naning, Melaka: land tenure, lineage/family and Lembaga/Undang/Yang diPertuanBesar election---matrilineal system/female.

Temenggong: originated from Palembang, Sumatra---expands patrilineal system.

Hindu and Chinese customary law applied to the Hindus and Chinese respectively.

Sabah and Sarawak applied the native customary law in land dealing and family matters.

SOU

RC

ES O

F LA

W

Muslim Law Applies to all persons who are Muslims.

Administered & enforced by the Syariah Court.

States Rulers are the guardians of the religion in their respective states; Yang di-Pertuan Agong (Federations Supreme Ruler) is the guardian for those states without a Ruler (Pulau Pinang, Melaka, Sabah, Sarawak & the Federal Territories of Kuala Lumpur, Putrajaya & Labuan).

Regulates such matters as marriages, divorce, adoption, legitimacy & certain religious offences among those professing the religion.

Malaysian Law

Written Law

Federal Constitution

State Constitution

Legislation

Subsidiary Legislation

Unwritten Law

English Law

Common Law

Equity

Judicial Precedent

Customs

Muslim Law